from the FAS Project on Government Secrecy
Volume 2008, Issue No. 94
September 26, 2008

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The Senate Judiciary Committee has authorized the issuance of a subpoena for a copy of opinions of the Justice Department Office of Legal Counsel (OLC).

OLC opinions interpret the law for executive branch agencies. Controversially, they have been used to sanction official departures from existing legal norms in domestic surveillance, prisoner interrogation, and other areas. They have also frequently been withheld from most members of Congress (though they have reportedly been provided to the intelligence committees in many cases).

"During this administration, OLC has been misused to provide legal justifications for misguided policies," said Sen. Patrick Leahy, chairman of the Judiciary Committee. "That advice has been deeply flawed, sloppy, and flat out wrong but it has been permitted to happen because secrecy has prevented our oversight."

"Unjustified secrecy continues to prevent the review by this Committee that would provide a check and some control on how the administration is interpreting the law that is Congress's constitutional responsibility to write. That obsessive secrecy even prevents us from knowing the subject matter on which OLC has written opinions," Sen. Leahy said.

The secrecy of OLC decisions, as well as interrogation policy, the role of signing statements and many other questions were explored in detailed questions submitted to Michael B. Mukasey following his confirmation hearing last October. The full record of that hearing (with the Attorney General's answers in the PDF version) has now been published:

Secret OLC opinions, along with overclassification generally, and a litany of other problematic practices were explored by Sen. Russ Feingold in a hearing last week on "Restoring the Rule of Law." Senator Feingold summarized the findings and recommendations of that hearing in a floor statement yesterday.


Sen. Daniel Inouye (D-HI) this week defended the current structure of congressional oversight of intelligence, and specifically rejected a proposal by Sen. Christopher Bond (R-MO) to establish a subcommittee on intelligence within the Senate Appropriations Committee (described in Secrecy News, Sept. 12).

Sen. Bond's proposal, according to Sen. Inouye, would have the undesirable effect of reducing the number of Senators and staff who are engaged in intelligence oversight. "It would put all decisionmaking into fewer hands," he said.

In making his argument, Senator Inouye also provided some fresh insight into current intelligence oversight arrangements in the Intelligence and Appropriations Committees.

"I would point out that the Intelligence Committee has one professional staff member on the majority staff who reviews the budget for the National Reconnaissance Office; so do we [on the Appropriations Committee]. The Intelligence Committee has one professional staff member on the majority staff who reviews the budget for the National Security Agency; so do we."

Sen. Inouye also obliquely discussed an intelligence satellite program advocated by Sen. Bond but rejected by the Appropriations Committee.

The history of congressional oversight of intelligence and specifically the CIA was recently explored in depth by L. Britt Snider in "The Agency and the Hill: CIA's Relationship with Congress, 1946-2004," CIA Center for the Study of Intelligence, 2008:

Reviewing the book in the latest issue of Studies in Intelligence, bibliophile and intelligence expert Hayden B. Peake wrote that "It will be the principal reference book on the topic for the foreseeable future." But surprisingly, the Snider book has minimal discussion of intelligence budget disclosure, one of the perennial themes in congressional oversight, and it does not even mention the official declassification of the intelligence budget in 1997 and 1998. David M. Barrett's "The CIA and Congress," cited by Snider, also has additional material not found in the Snider book for the early years of the Agency.


The African Republic of Burundi this week ratified the Comprehensive Test Ban Treaty which prohibits all nuclear explosions. A total of 145 nations have now ratified the Treaty, according to a news release from the CTBT Organization.

Detailed background on the Comprehensive Test Ban Treaty is available from the Congressional Research Service in a report updated September 18 that has not previously been made available online.


Yale Law School will hold a conference September 27 on "Governing After 2008," examining a range of national policy issues and possible new directions for the next Administration.

I will be speaking on secrecy and accountability. Stop by if you're in the neighborhood.


Secrecy News is written by Steven Aftergood and published by the Federation of American Scientists.

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